Citation Nr: 0811969 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 99-17 882A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for pes planus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from July 1963 to June 1965; he subsequently had additional service in the Army Reserves. This case comes before the Board of Veterans' Appeals (Board) from a June 1999 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In January 2001, the Board remanded the claim for further development. A September 2002 Board decision denied the claim. The veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court) - which, pursuant to an unopposed motion, entered an Order in March 2003 vacating the Board's September 2002 decision and remanding the case to the Board for further development and readjudication. After receiving the case back from the Court, the Board, in turn, then remanded it to the RO in October 2003 for compliance with the directives specified - including ensuring compliance with the Veterans Claims Assistance Act (VCAA). Upon completion of the requested development, the case was again returned to the Board, which issued another decision in February 2005, again denying service connection for pes planus. The veteran again appealed that decision to the Court. A Joint Motion in May 2007 asked the Court to vacate and remand for further development and readjudication the portion of the Board's February 2005 decision that had denied service connection for pes planus (the Board also had denied claims for service connection for disability of the right third finger and for disability manifested by foot pain and tingling and numbness of the toes - all alleged to have been due to cold injury). Later in May 2007, the Court issued an Order granting the Joint Motion - vacating and remanding the part of the Board's decision that had denied service connection for pes planus and dismissing the appeal as to those other issues. So only the pes planus claim remained. And to again comply with the Court's Order, the Board again remanded this remaining pes planus claim in July 2007, via the Appeals Management Center (AMC), for still further development and consideration - including, in particular, obtaining a clarifying medical opinion in September 2007. FINDINGS OF FACT 1. The veteran's pre-induction physical examination found that he had second degree pes planus, and he has conceded having this condition prior to beginning active duty in the military. 2. The weight of the evidence, including the clarifying medical opinion obtained in September 2007 following the Board's most recent remand, clearly and unmistakably indicates the veteran's pre-existing (i.e., pre-service) pes planus did not worsen (meaning permanently increase in severity) during his service beyond its natural progression. CONCLUSION OF LAW Second degree pes planus having been found on the pre- induction examination, the presumption of soundness on service entrance is not applicable to the veteran's pre- existing pes planus, and this disorder was not aggravated during his service. 38 U.S.C.A. §§ 1110, 1111, 1131, 1153, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist VA has complied with the duty-to-notify provisions of the VCAA. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002). In particular, letters from the RO and AMC in February 2001, February 2004, August 2007 (1) informed the veteran of the information and evidence not of record that is necessary to substantiate his claim; (2) informed him of the information and evidence that VA would obtain and assist him in obtaining; (3) informed him of the information and evidence he was expected to provide; and (4) requested that he provide any evidence in his possession pertaining to his claim, or something to the effect that he should "give us everything you've got pertaining to your claim." Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). VA also has complied with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), which states that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. VA complied with the requirements in Dingess when it sent a VCAA notice letter in August 2007 discussing the downstream disability rating and effective date elements of the claim and then went back and readjudicated the claim in the November 2007 supplemental statement of the case (SSOC). This is important to point out because the Federal Circuit Court recently held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 07-7130 (Fed. Cir. September 17, 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Even if arguably there is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post- decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to him over the course of this appeal, and his responses, he clearly has actual knowledge of the evidence he is required to submit and needed to substantiate his claim; and (2) based on his contentions he is reasonably expected to understand from the notices what was needed. See Sanders v. Nicholson, 487 F.3d 881 (2007). VA also fulfilled its duty to assist by obtaining all relevant evidence concerning the claim under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The RO and AMC obtained all pertinent medical records identified by the veteran and his representative. In addition, as alluded to, VA furnished the veteran a compensation examination to determine whether his military service aggravated or permanently increased the severity of his preexisting pes planus. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Accordingly, the Board finds that no further assistance is needed to meet the requirements of the VCAA or Court. II. Whether the Veteran is Entitled to Service Connection for Pes Planus Governing Statutes and Regulations Service connection is granted for disability resulting from disease or injury incurred in service or, if the condition at issue pre-existed service, for aggravation of it during service beyond its natural progression. 38 U.S.C.A. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303(a), 3.306. For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). See also, Savage v. Gober, 10 Vet. App. 488, 495 (1997). Service connection also is possible for any disease initially diagnosed after discharge from service when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). "A veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000)). Also found at Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). In VAOGCPREC 3-2003, issued on July 16, 2003, it was held under VA's regulations as currently interpreted, if a condition was not noted at entry but is shown by clear and unmistakable evidence to have existed prior to entry, the burden then shifts to the claimant to show the condition increased in severity during service. Only if the claimant satisfies this burden will VA incur the burden of refuting aggravation by clear and unmistakable evidence. However, this General Counsel opinion went on to hold that rebutting the presumption of sound condition at service entrance, provided by 38 U.S.C.A. § 1111, requires a two-pronged rebuttal standard by which VA must show by clear and unmistakable evidence both (a) the preexistence of the claimed disability, and (b) that the disability did not increase in severity during service. Both prongs require an evidentiary standard of clear and unmistakable evidence and a claimant is not required to show an in-service increase in disability before the second prong of this rebuttal standard attaches. To the extent that 38 C.F.R. § 3.304(b) states only the first prong, it is invalid. See also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004). Under the language of the statute, VA's burden of showing that the condition was not aggravated by service is conditioned only upon a predicate showing that the condition in question was not noted at entry into service. The statute imposes no additional requirement on the claimant to demonstrate that the condition increased in severity during service. Because 38 C.F.R. § 3.304(b) imposes a requirement not authorized by the section 1111, it is inconsistent with the statute. See Skinner v. Brown, 27 F.3d 1571, 1574 (Fed. Cir. 1994). In explanation it was stated that the requirement of increased disability in 38 C.F.R. § 3.306(b) merely reflects the provisions of 38 U.S.C. § 1153 requiring such an increase and is clearly valid for that reason. But that requirement in 38 C.F.R. § 3.306(b) does not apply in the context of determining whether the presumption of sound condition under 38 U.S.C. § 1111 has been rebutted. 38 U.S.C.A. §§ 1111 and 1153 establish distinct presumptions, each containing different evidentiary requirements and burdens of proof. 38 U.S.C.A. § 1153 requires claimants to establish an increase in disability before VA incurs the burden of disproving aggravation in cases governed by the presumption of aggravation, while 38 U.S.C.A. § 1111 does not impose such a requirement in cases subject to the presumption of sound condition. 38 C.F.R. § 3.306 is intended to implement the presumption of aggravation under 38 U.S.C.A. § 1153. 38 C.F.R. § 3.306(a) reiterates the language of 38 U.S.C.A. § 1153 and cites that statute as its authority. Accordingly, 38 C.F.R. § 3.306(b) is inapplicable to determinations under 38 U.S.C. § 1111. See Cotant v. Principi, 17 Vet. App. 116, 121-22 (2003); Jordan v. Principi, 17 Vet. App. 261, 265 - 66 (2003); Martin v. Principi, 17 Vet. App. 342, 227-29 (2003). In determining whether service connection is warranted for a disability alleged, VA is responsible for considering evidence both for and against the claim. If the evidence, as a whole, supports the claim or is in relative equipoise (i.e., about evenly balanced), then the veteran prevails. Conversely, if the preponderance of the evidence is against the claim, then it must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Background A March 1963 pre-induction examination found that the veteran weighed 157 lbs. and had asymptomatic 2nd degree pes planus. His service medical records (SMRs) are unremarkable for complaints, findings or treatment for any disorders involving his feet, so including any problems with his pes planus. His May 1965 military discharge examination found that he was 73 inches tall and weighed 205 lbs. Also, it was reiterated that he had 2nd degree pes planus, although there was no express indication of whether it was asymptomatic/symptomatic. In an adjunct medical history questionnaire the veteran reported having or having had foot trouble and it was indicated that this was in reference to his pes planus. His regular active duty service ended in June 1965. Additional SMRs concerning the veteran's reserve duty from November 1974 to April 1981 make no reference to complaints of or treatment for pes planus. Examinations in November 1974, when he weighed 213 lbs., and in October 1978, when he weighed 204 lbs., revealed his feet were normal and in adjunct medical history questionnaires he denied foot trouble. In April 1981 he weighed 240 lbs. Treatment records of Dr. W.W. from April 1999 reflect the veteran had foot pain as well as numbness and tingling at the ends of his toes. In an April 2001 Statement in Support of Claim (VA Form 21- 4138), the veteran stated that after being issued combat boots his feet began to bother him when he was stationed at Ft. Bragg in Fayetteville, North Carolina. Prior to service, he had participated in sports and other activities but had not had any problems with his feet, even if he had pes planus. At Ft. Bragg he was not allowed to go on sick call and was made to wait until he was sent to Ft. Gordon where he claims he was issued arch supports despite there being no record of this. He was instructed to wear them for only two hours and then remove them but his First Sergeant would not allow him to remove them after two hours of training. The arch supports did provide some relief. During his June 2001 RO hearing, the veteran testified that he had pes planus prior to service, but said it did not bother him. He claimed he sought treatment during service (page 1 of the transcript). He claimed he was first seen by a military physician at Ft. Gordon in 1963 and was given arch supports, and aspirin for pain. The physician recommended that he wear the arch supports for 2 hours and then remove them (page 2). But, his First Sergeant would not stop the drills to allow him to remove the arch supports. He had not received any further in-service treatment because the arch supports relieved the pain after he became acclimated to them. He did not remember if he had sought treatment for his feet within the first post-service year, but he had continued to wear the arch supports because he was working on a cement floor in a mill. He no longer wears arch supports (page 3). He sometimes takes aspirin for his foot pain and occasionally soaks his feet in Epsom salt water. In December 2001 the RO informed the veteran of the receipt of additional records from Dr. W.W., but also that Dr. W.W. had not rendered an opinion, as requested, concerning whether the veteran's pes planus was either caused or aggravated by his military service. At the same time the RO sent another request to Dr. W.W. for a medical opinion about this determinative issue and, in response, this physician indicated he had "nothing in [his] records to make an opinion about this problem." In May 2002, X-rays of the veteran's right foot revealed moderate Achilles and plantar calcaneal spurs and minimal hallux valgus, but no other focal abnormality. X-rays of the left foot demonstrated a small plantar calcaneal spur, a very minimal Achilles calcaneal spur, and mild hallux valgus. In a July 2002 statement, the veteran contended that his preexisting pes planus did not bother him until after his induction into the service when he had to wear combat boots during basic training, after which he began having severe pain in his feet. He was given arch supports, but the foot pain became even worse since he was not permitted to remove the arch supports at the intervals prescribed by a physician. VA furnished a compensation examination in May 2002, and obtained an addendum in June 2002, to determine the impact of the veteran's military service on his preexisting pes planus. The Court, however, on appeal found this examination and the addendum inadequate to address the question of etiology of this condition. Consequently, VA furnished the veteran another compensation examination in September 2007, following three remands, to determine whether his military service aggravated or permanently increased the severity of his preexisting pes planus - that is, beyond the natural progression of the disease. During the examination, the veteran complained of constant pain in the longitudinal arches of both feet. He also reported that he does not use a brace, cane or crutches, has no history of hospitalization or surgery, nor does he use any kind of corrective shoes or shoe inserts at the present time (although he did in the past). He acknowledged that he has no history of an injury to his feet but he did note problems with activities of daily living. Objective findings indicated obvious flattening of the longitudinal arch bilaterally and a hallux valgus bilaterally with deviation of each great toe of about 20 percent laterally. There was no instability or weakness noted or significant edema. He had a normal gait. After a review of his claims file, the examiner found no mention of any significant problems with the veteran's feet and no documentation in his service medical records of any visits to health facilities, sick call, or hospitalization for treatment of the pes planus. The examiner indicated the veteran did not have problems with his pes planus until 2001. [Note: As mentioned, there is the slightly earlier record in April 1999 showing treatment for pain in the feet and numbness and tingling in the toes, but it is unclear whether that prior episode of treatment concerned, instead, the veteran's other claim for foot disability due to cold injury - which the Board has also denied and which has since been dismissed by the Court as no longer at issue.] In any event, whether the veteran initially received treatment, post service, in April 1999 or slightly later in 2001 has no bearing on the outcome of his claim for pes planus because his claim is mostly predicated on the notion of this condition having been exacerbated by his military service, so, itself, an acknowledgement that he has had this condition for quite some time, indeed well before even 1999. The September 2007 VA examiner diagnosed pes planus, hallux valgus with residuals and peripheral neuropathy of undetermined etiology, noting, however, that in his opinion it is not secondary to the veteran's pes planus. The examiner further noted that he could find no evidence of problems with the veteran's feet during service that required medical attention. Indeed, the examiner concluded there was no evidence of any treatment in service for the pes planus or for many years subsequent to service until about the past several years when the veteran had complained about it. In short, said the examiner, there is no documentation of any problem in the service, or up until several years ago of any significant problem involving pes planus. Hence, the examiner opined that in the absence of better documentation, there is no evidence to support the veteran's contention that his pes planus was aggravated or permanently increased by his military service. Even though the veteran concedes that he had pes planus prior to service, he states that it was asymptomatic. Nevertheless, it was found on the pre-induction examination and determined to be second degree. Pes planus is a disability listed in the Schedule for Rating Disabilities. See 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2007). A noncompensable rating is warranted for mild symptoms relieved by a built-up shoe or arch supports. A 10 percent rating is warranted when pes planus is moderate with the weight-bearing line over or medial to the great toe, inward bowing of the tendo-achillis, pain on manipulation and use of the feet, either bilaterally or unilaterally. Accordingly, the presumption of soundness upon entrance into active service does not apply. Because the presumption of soundness does not apply, the standards announced in VAOGPREC 3-2003 are not applicable, i.e., the two-pronged rebuttal standard requiring clear and unmistakable evidence of pre-existence and of no in-service aggravation. Rather, the burden is on the veteran to establish a permanent in-service increase in disability. Pes planus, i.e., flat feet, is unique in the sense that it is a readily observable condition, even by a layman. So the veteran is competent to acknowledge this pre-existing condition. Once evidence is determined to be competent, the Board must determine whether it is also credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). The Board finds the veteran's statements and testimony that he was given arch supports during service, in response to complaints of symptoms due to his pes planus, to be credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007). See also 38 C.F.R. § 3.159(a)(2). This alone, however, is insufficient to establish there was a permanent in-service increase in his pre-existing pes planus disability. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. See 38 U.S.C.A. § 1153; 38 C.F.R. §§ 3.304, 3.306(b). A pre-existing disease or injury will be presumed to have been aggravated by service only if the evidence shows that the underlying disability underwent an increase in severity; the occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); 38 C.F.R. § 3.306(a) (2007). A finding of aggravation is inappropriate in cases where the evidence shows the increase is due to the natural progress of the disease. Furthermore, mere temporary or intermittent flare-ups of a pre-existing disease during service are insufficient to be considered aggravation of the disease unless the underlying condition, as contrasted to symptoms, worsens. See Jensen v. Brown, 4 Vet. App. 304, 306-7 (1993); Hunt v. Derwinski, 1 Vet. App. 292 (1991). When examined for discharge from service, the veteran weighed some 48 lbs. more than during his pre-induction examination. He complained of having or having had problems with his feet. Interpreted most favorably, i.e., that he complained of current symptoms at discharge rather than a mere history of symptoms, there remains the fact that by his own admission he had not sought any further treatment during service, even though he now states that he continued to have symptomatology. In his September 1999 substantive appeal (VA Form 9), the veteran stated that Dr. W.W. believed the veteran's pes planus had worsened during service. However, Dr. W.W. stated in January 2002 that he had nothing in his records upon which to make such an opinion. In the veteran's July 2002 Statement in Support of Claim (VA Form 21-4138), he also reported that the May 2002 VA examiner had stated to him that the pes planus was aggravated during service. And yet, the record indicates otherwise, showing this physician concluded the veteran's military service did not aggravate or permanently increase his pes planus. See also the June 2002 addendum to this same effect. In this regard, as to the requirement of medical evidence of a nexus to service, when the underlying medical nature of evidence has been significantly diluted, as in the connection between a lay account of past medical information, and filtered through layman's sensibilities, such evidence is too attenuated and inherently unreliable to constitute 'medical' evidence. See Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993); See also Robinette v. Brown, 8 Vet. App. 69, 77 (1995). Probably most importantly, though, even the additional medical opinion obtained in September 2007 following the Board's most recent remand - specifically to clarify whether there was aggravation during service of the pre-existing pes planus, concluded rather unequivocally that there was not. This September 2007 VA examiner's opinion, after a review of the claims file, found no evidence of any foot problems in service that required medical attention. Indeed, the examiner found no evidence of treatment until many years after service. He was very clear in stating there was no evidence supporting the veteran's contention that his military service had aggravated or permanently increased his preexisting pes planus. The May 2007 Court Order required the examiner to note whether it is indisputable that any increase in severity was beyond the normal progression to be expected with respect to this disorder. And while the September 2007 examiner did not use this specific language, his use of "no evidence supporting the veteran's contention" is tantamount to stating that the evidence indisputably shows his military service did not aggravate or permanently increase his preexisting pes planus. The examiner simply left no doubt about his opinion concerning this, and his opinion remains uncontroverted. In the absence of any competent evidence suggesting aggravation of the preexisting pes planus during service, VA must deny the claim for this condition because the preponderance of the evidence is unfavorable, in turn meaning there is no reasonable doubt to resolve in the veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The claim for service connection for pes planus is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs